Orcutt v. Northern Pacific Railroad Company

• Decision Date: 13 February 1891
• Citation: 47 N.W. 1068,45 Minn. 368
• Parties: Henry M. Orcutt v. Northern Pacific Railroad Company
• Court: Minnesota Supreme Court

47 N.W. 1068

45 Minn. 368

Henry M. Orcutt v. Northern Pacific Railroad Company

Supreme Court of Minnesota

February 13, 1891

Appeal by plaintiff from an order of the district court for Stearns county, Searle, J., presiding, refusing a new trial after a dismissal ordered at the trial, in an action to recover $ 2,000 for personal injuries.

Order reversed.

D. W Bruckart for appellant.

Geo. H Reynolds, for respondent.

OPINION

Gilfillan, C. J. ^[1]

The plaintiff delivered to defendant, at the Minnesota Transfer a car in which was his horse, some furniture, and other property, to be transported by defendant over its line to Sauk Rapids, under a written contract in which were these stipulations: "The said shipper agrees to load, unload, and reload all stock at his own expense and risk, and to feed, water, and attend the same at his own expense and risk, while it is in the stock-yards of said company awaiting shipment, and while on the cars, and at feeding or transfer points, or where the same may be unloaded for any purpose. The said shipper himself assumes the duty of properly and securely placing all the stock in the cars, and of keeping such cars securely locked and fastened, so as to prevent escape by such stock therefrom." The car arrived at Sauk Rapids about 2 o'clock in the morning, and was placed upon a side track at the company's stock-yard at that place. Upon its arrival, plaintiff, who appears to have ridden in the car from the Transfer, left it, and after a few minutes, when it was on the side track, returned to it, and lay down. About 5 o'clock in the morning the engine of a freight train of defendant, negligently, as is alleged, ran into the car in which plaintiff was, and he was injured. The action is to recover for such injury. At the close of the evidence the court below dismissed the action, on the proposition, as stated by it, that, the relation of carrier and passenger having ceased, the defendant's duty of care in respect to plaintiff had ceased, and it owed him no duty in any other relation.

It may be assumed that on the arrival of the car at Sauk Rapids, and after a reasonable opportunity to leave it, and the plaintiff having left it, the relation of carrier and passenger had ceased. But the duty of care did not necessarily depend on the continuance of that relation, although the degree of care might be modified by a change in the relation. The duty of care, and the...